Citation Nr: 22013528 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-10 543A DATE: March 9, 2022 ORDER A November 2013 reduction from a rating of 10 percent to a non-compensable rating for hemorrhoid disability was improper, and the rating is restored. Entitlement to a rating in excess of 10 percent for hemorrhoid disability is denied. REMANDED Entitlement to an increased rating in excess of 10 percent prior to July 2, 2019, and in excess of 20 percent thereafter for lumbar spine disability is remanded. FINDING OF FACT 1. A November 2013 rating decision reduced the Veteran's rating for service-connected hemorrhoidectomy from 10 percent to noncompensable, effective February 1, 2014. As of February 2014, the 10 percent rating for hemorrhoid disability had been in effect for less than five years. 2. At the time of the reduction, the record did not establish that a material improvement of the Veteran's service-connected hemorrhoid disability had occurred which resulted in an improvement in his ability to function under the ordinary conditions of life. 3. The probative evidence of record does not show the Veteran's hemorrhoid condition has manifested to being large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, or persistent bleeding with secondary anemia, or with fissures. CONCLUSION OF LAW 1. The criteria for the reduction of the 10 percent disability rating to non-compensable for hemorrhoidectomy, effective February 1, 2014, was proper; the criteria for restoration of the 10 percent rating for prostate hemorrhoidectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.114, Diagnostic Code 7336. 2. The criteria for entitlement to a rating in excess of 10 percent prior to February 1, 2014, and a compensable thereafter for hemorrhoid disability have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1961 to February 1969 and from November 1977 to July 1989. In July 2018, the Veteran was provided a hearing with the undersigned Veterans' Law Judge. Most recently, a December 2019 Board decision denied the Veteran's claims for entitlement to increased ratings for lumbar spine disability, and increased rating for hemorrhoid disability, and whether a rating reduction from February 1, 2014 for the Veteran's hemorrhoid disability was proper. In June 2021, the Veteran appealed the decision as to the above issues to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated in part and remanded the December 2019 Board decision as to the above issues. The Court found that the Board did not provide adequate Reasons and Bases in its decision. First, in pertinent part, for the Veteran's lumbar disability, the Court found the Board relied on inadequate examinations for the Veteran's increased rating claim, as the examinations did not include active and passive range motion or weight and non-weight bearing testing, to include with the opposite joint. Second, for the Veteran's claims related to his hemorrhoid disability, the Court found the Board did not properly consider all the relevant evidence, to include the Veteran's statements. Rating Reduction Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the Regional Office (RO) must notify the Veteran at the Veteran's latest address that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (e). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. 38 U.S.C. § 1155 (2012). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; 38 C.F.R. § 3.344 (c) (2017). In general, the reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). Rating Reduction: Hemorrhoid Disability The Veteran contends that the Regional Office (RO) improperly reduced his rating for service-connected hemorrhoidectomy with hemorrhoids. This matter stems from a June 2013 rating decision, which proposed to reduce the Veteran's evaluation for hemorrhoidectomy from 10 percent to non-compensable following the results of a January 2013 VA examination. In a November 2013 rating decision, the RO reduced the Veteran's evaluation for hemorrhoidectomy to non-compensable, effective February 1, 2014. The Veteran disagreed with the reduction and requested a higher evaluation. At the time of the November 2013 reduction, the 10 percent evaluation for the Veteran's hemorrhoidectomy had been in effect since September 24, 2009. Thus, as the rating for hemorrhoidectomy had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a), (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Thus, it must be determined that an improvement in the disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; 38 C.F.R. § 3.344 (c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement). The question of whether a disability has improved involves consideration of the applicable rating criteria. Prior to the reduction, the Veteran's hemorrhoid disability was rated under the criteria found at 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336. Under DC 7336, a non-compensable rating is given for mild or moderate internal or external hemorrhoids. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling, and hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated as 20 percent disabling. 38 C.F.R. § 4.114, DC 7336. In January 2013, the Veteran attended a VA examination. While the Veteran was noted as having only mild or moderate internal or external hemorrhoids, the Veteran reported itching, bleeding, diarrhea, and constipation. In the Veteran's December 2013 Notice of Disagreement (NOD), the Veteran also reported hard stools, pain when using the restroom, and pain in general. In applying the benefit of the doubt, the Board finds that the evidence of record did not clearly show that the Veteran's hemorrhoid condition had improved under the ordinary conditions of life. Although the Veteran was not noted as having large or thrombotic hemorrhoids with redundant tissue, he still reported consistent pain and constipation caused by his condition. He also reported taking medication for his constipation. Thus, the condition did not show improvement reflected in his ability to function in daily life. Accordingly, the Board finds that the rating reduction from 10 percent to non-compensable was improper. Therefore, the Veteran's 10 percent rating for hemorrhoidectomy with hemorrhoids is restored, effective February 1, 2014. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2021). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: Hemorrhoids The Veteran's service-connected hemorrhoids are currently rated as 10 percent disabling under Diagnostic Code (DC) 7336 for External and Internal Hemorrhoids. Under Diagnostic Code 7336, a non-compensable rating is given for mild or moderate internal or external hemorrhoids. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling, and hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. 38 C.F.R. § 4.114, DC 7336. In January 2013, the Veteran received a VA examination. The Veteran reported itching, bleeding, diarrhea, and constipation. The examiner noted the Veteran needed continuous medication for his condition. The Veteran had moderate small hemorrhoids. The Veteran also had mild and occasional pruritus. The examiner noted it did not impact the Veteran's ability to work. In the Veteran's December 2013 NOD, the Veteran also reported hard stools, pain when using the restroom, and pain in general. In December 2013, the Veteran was seen at the VA medical center. The Veteran received a rectal examination which showed no visible or palpable hemorrhoids. In December 2017, the Veteran received a colonoscopy. The colonoscopy showed small internal hemorrhoids. The Veteran was instructed to eat a high fiber diet and take fiber supplements. Another colonoscopy was noted as not being needed for five years. In June 2019, the Veteran received another VA examination. The Veteran reported pain and discomfort in his rectum. Upon examination, there were no external hemorrhoids, only skin tags. No hemorrhoids of any other kind were noted. In June 2020, the Veteran attended a VA examination. The Veteran reported burning, itching, and rectal pain with hemorrhoids. He reported intermittent bleeding when wiping. The Veteran's treatment plan did not include continuous medication. The examiner noted the Veteran had mild to moderate internal or external hemorrhoids and on examination, small or moderate external hemorrhoids were found. After review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. During the entire period on appeal, the Veteran has never been found to have large or thrombotic hemorrhoids, redundant tissue, persistent bleeding or anemia, or fissures of any kind, nor has the Veteran himself reported any of these symptoms. In fact, the Veteran has consistently been found to have only small mild to moderate hemorrhoids, to include in the January 2013 examination, December 2017 colonoscopy, and his most recent June 2020 examination. The Board acknowledges the Veteran's reports of pain, itching, bleeding and constipation. The Board further recognizes the Veteran's statements that it affects his daily activities and occupational ability, to include his statements at his July 2018 Board hearing and December 2013 NOD. However, the Board notes that the Veteran does not currently meet the schedular criteria for his 10 percent rating, which requires there be large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and thus, his additional pain, itching, bleeding, and discomfort are considered to provide his current 10 percent rating. See 38 C.F.R. § 4.114, DC 7336. The Board again emphasizes acknowledgement of the Veteran's lay statements that his hemorrhoids have been a consistent problem with pain and occasional bleeding. The Board recognizes that the Veteran is competent to report his symptoms, such as rectal bleeding, itching, and pain. See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board has reviewed the medical evidence of record and has determined it is consistent with the rating assigned. In light of the foregoing, the Board concludes that, as the evidence persuasively favors against the claim, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, a rating in excess of 10 percent for the Veteran's hemorrhoid disability is not warranted. REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's remaining claim. Entitlement to an Increased Rating: Lumbar Spine The Veteran contends that his lumbar spine disability warrants higher ratings than provided. In accordance with the Court's Order, the Board finds an updated examination is needed due to the examinations of record not performing the required testing for the joints. Specifically, the examinations did not test both active and passive motion, weight-bearing and non-weight bearing, and range of the opposite joint, as needed to determine full range of motion under 38 C.F.R. § 4.59. See also Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, a remand is required in order to obtain a new VA examination that conducts all required testing to determine the severity of the Veteran's lumbar spine disability. The matter is REMANDED for the following action: Schedule the Veteran for VA examinations with an appropriate examiner to determine the current severity of his lumbar spine disability. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran's condition and fully describe the current extent and severity of those symptoms. The examiner should discuss all findings in terms of the Schedule of Ratings for the Spine, Diagnostic Code 5242-43. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should conduct all testing to include active and passive range of motion, weight-bearing and non-weight-bearing, and testing of the non-injured joint, if applicable. Please note whether range of motion remains the same during active and passive testing. The examiner should further determine whether any lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. The examiner should also determine whether the Veteran's additional impairment on flare-ups or repetitive use is the functional equivalent of ankylosis. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J Negron The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.